- (1.) THIS is a reference from the Division Bench case No. 18/60/revision (S. T.) M/s Madho Behari Mohan Behari, Jaipur vs. the State of Rajas than, made by the two learned Members of the Board Sarvshri Khem Chand and Shri Z. S. Jhala.
(2.) DURING the course of hearing of the aforesaid revision, a question of law was raised by the learned counsel for the petitioner before the above Division Bench that the order of appointment of the Sales Tax Officer whose assessment order dated 28. 1. 57 was being questioned in revision was not valid. In other words he was not validly appointed for the reason that the Rajasthan Sales Tax Act, 1954 came into force on 1st April, 1955 and the rules were published in the gazette on 28th March, 1955 and the Sales Tax Officer was appointed by the Government Notification of the Revenue Department No. F. 50 (8; 55/sr dated the 28th March, 1955 published in the Rajasthan Gazette on 29th March, 1955. These appointments were made in pursuance of clause (g) of rule 2 of the Rajasthan Sales Tax Rules, 1955. Since the appointment of the Sales Tax Officer was prior to the enforcement of the Act and the rules thereunder it was not a valid appointment. The question of law referred to by the Division Bench to this larger Bench namely whether the appointment of Sales Tax Officer in the circumstances narrated above was valid or not, was examined by us. Shri Khetan appeared for the petitioners and Shri G. G. Kasliwal Advocate General of the Government of Rajasthan represented the State. The relevant Act, Rules and Notifications were examined and arguments were heard. The first contention of the learned counsel for the petitioner was that the appointment of the Sales Tax Officer was invalid under the Notification of the Government due to the fact that at the time the appointment was made neither the rules made under the Act were published nor the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the Act) came into force. His second contention was that the Rajasthan Sales Tax Rules Validating Act, 1959 did not validate the enforcement or operation of the rules by providing in sec. 3 (a) of the aforesaid Act that the Rules shall be deemed to have come into force on the 1st day of April, 1955, the date on which the Act came into force. Further the amendment made in sec. 96 of the Act of 1954 by the omission of the following words: "from such date as may be notified in this behalf. " does not in any way affect the enforcement of the Sales Tax Rules which only came into operation on 1st April, 1955 when the Act of 1954 came into force and did not validate the appointment of a Sales Tax officer which preceded the enforcement of the rules and the Act. This Notification was ab initio invalid. The learned counsel in support of this contention cited (1) 9 S. T. C. 1958, page 208 in the case of Sundram Aiyar & Co. Vs. State of Andara Pradesh wherein the Sales Tax Laws Validation Act, 1956 was held not to validate the previous Act. (2) STC. 8 1957 page 666, wherein it was held that the Utter Pradesh Sales Tax amendment Ordinance 1956 did not validate the Notification No. S. T. 905 dated the 31st March, 1956 issued under the Utter Pradesh Sales Tax Act, 1958 as the Governor had no power to issue such an order under the former unamended Act. (3) STC 1958 page 492, wherein it was held that a Notification issued by Governor of the Utter Pradesh Sales Tax Act, 1948 and declared invalid by the High Court in Adarsh Bhandar Vs. The Sales Tax Officer has not been validated by the Utter Pradesh Sales Tax Amendment Act, 1957 and continued to remain invalid in the absence of the power under the amended Act to validate the previous notification. (4) 12 - STC. 1961 page 433, wherein the Utter Pradesh Sales Tax Validation Act, 1958 was held to be ultra-vires and the Notification dated the 31st March, 1956 was held to have been validated by this new Act. This ruling, however, does not support the case of the learned counsel for the petitioner. The learned Advocate General did not consider it necessary at all to reply to the contentions raised by the learned counsel for the petitioner, but defended the interest of the State on entirely new grounds. He conceded that as far as the Rajasthan Sales Tax Rules Validating Act, 1959 was concerned it was a piece of legislation which could be styled as abundens cautila which in fact did not serve the purpose of validating anything. He, however, argued that the interpretation of the Rajasthan Sales Tax Act, 1954 has to be governed by the provisions contained in the General Clauses Act, 1955 by virtue of sub-sec. (4) of sec. 22. Sec. 26 of the Rajasthan Sales Tax Act empowers the State Government to make rules to carry out the purpose of that Act. As soon as the rules are published under the Sales Tax Act they form part or that Act. Before an Act or the Rules made thereunder could be enforced it is necessary and a usual practice for a Government to set up a machinery and appoint officers who are to enforce the rules when an Act comes into force. The Rajasthan Sales Tax Act, 1954 received the assent of the President on the 22nd December, 1954 and became law. The State Government, therefore, framed properly rules under the Act to give effect to the provisions of the law and they were published on the 28th March, 1955. The General Glauses Act, 1897 of the Central Government and the Rajasthan General Clauses Act, 1955, were enacted to make provision for and facilitate the interpretation of Rajasthan Laws. Sec. 28 of the former and sec. 25 of the latter Act empowered the State Government where Rajasthan Law had been enacted to make rules, to issue order with respect to the application of such law, provide for the Government is to be exercised soon after the enactment of such law or passing of such rules, but no action can be taken by such officer till the law commences. The learned Advocate General therefore argued that in exercise of that power the State Government properly framed the rules before the Sales Tax Act came into force and also made appointments of Sales Tax Officer. The State Government had to make these advance preparations for setting up a machinery in order to enforce the provisions of the Act before the Act was brought into force. The learned Government Advocate stated that sec. 2 (b) of the Sales Tax Act which defined the "assessing Authority" also authorised the State Government to make an appointment of such an authority. It was in exercise of this power that the Government issued the Notification appointing the Sales Tax Officer as the Assessing Authority. He further pointed out that under sec. 26 (2) (f) of the Sales Tax Act the Government had the power to make rules for the appointment of Officer for the purpose of enforcing the provisions of the Act, but as no rules were framed under the aforesaid section, the Government was perfectly authorised to make appointment of '''assessing Authorities" under sec. (2) (b) of the Sales Tax Act. This in his opinion was the natural and reasonable interpretation of the order exercising the power of making appointment of officers by the Government under sec. 24 of the Rajasthan General Clauses Act. We have considered the arguments advanced by the learned counsel for the appellant as well as by the Government Advocate on an important point of a reference made by the Division Bench regarding the validity or otherwise of the appointment of the Sales Tax Officer in this case who made an assessment order. There is no doubt that the Act came into force on 1. 4. 1955 and the rules under the Act were published prior to the enforcement of the Act on 28. 3. 1955 and by virtue of sec. 3 of the Rajasthan Sales Tax Rules validating Act, 1959 the rules also came into force on the first day of April, 1955, the date on which the Act came into force. From the perusal of sec. 26 sub-sec. 2 (f) that the Government had power to make rules to provide for the appointment, duties, and powers of officers appointed for the purpose of enforcing the provisions of this Act. It is admitted by the Government Advocate and conceded by the counsel for the appellant that no rules were framed by the Government for this purpose. In the absence of which the Government had to take recourse for appointment of officers to enforce the provisions of this Act under other provisions of the law. In the Act sec. 2 sub-sec. 4 defines an "assessing Authority" which means any person authorised by the State Government to make an assessment of tax under this Act. A provision also exists under the Sales Tax Rule 2 (g) denning the "sales Tax Officer" as on Officer appointed by the Government. The Notification dated the 28th March, 1955 was issued by the Government in pursuance of R. 2 (g) appointing the Agricultural Income Tax Officer as the Ex-Officio Sales Tax Officer. The objection taken by the learned counsel for the appellant to this Notification was that in the absence of the legal existence of the rules which never came into force on 28th March, 1955 the appointment of Sales Tax Officer was entirely invalid and to that extent the Notification was void. He supported this contention by referring to the Rules cited above. He further urged that the subsequent validating Act passed by the Government did not validate the appointment made of the Sales Tax Officer. In this respect we agree with the learned counsel for the appellant that it was not open to the Government to make appointments under Rules as the Act itself did not become the law of the State. It only came into force on 1st April, 1955. Thus there was an inherent defect in the Notification issued by the Government making the appointment of the Sales Tax Officer under the Rules. The Government Advocate has taken the stand that taking recourse under sec. 24 of the Rajasthan General Glauses Act, 1955 it was open for the Government to appoint the Sales Tax Officers, and to publish the rules well in advance of the enforcement of this Sales Tax Act itself. He pointed out that sec. 2 sub-sec. (a) of the Sales Tax Act defines the "assessing Authority and thus a provision existed in the Act itself for appointment of an assessment or tax under the Act. He, therefore, argued that the Government rightly exercised the power of the appointment of a Sales Tax Officer well in advance of the enforcement of the Act. In fact the status of the Sales Tax Officer was the same as that of the Assessing Authority. Thus there was no invalidity in the appointment of the Sales Tax Officer or the Assessing Authority by the Government well in advance of the enforcement of the Act and under the rules which came into force subsequently. He wanted us to ignore the defect of the form of the Notification and to appreciate the validity of the power of the Government to make an appointment of an authority under the Act only. There is much force in the argument advanced by the learned Government Advocate. We concede that the Notification appointing the Sales Tax Officer was defective from the point of view of the form in which it was made and the manner in which the Government exercised the power of appointment of a Sales Tax Officer under the provisions contained in the Rules. But it cannot be said that the Government had no authority to make an appointment of a Sales Tax Officer under the Act readwith provisions of the General Clauses Act prior to the enforcement of the Act and the rules. We thus hold that after the passing of the Act and before the Rules came into force the Government had power to appoint Assessing Authority or Sales Tax Officer under the Act and they were validly appointed, even before the Rules came into force, though the form of the Notification under which they were appointed. Nevertheless we consider the appointment of these officers valid, in substance. No useful purpose would be served by holding that the form of appointment of the Sales Tax Officers was invalid as assessments have been made by such officers uptil now. This view, if taken, would cause a general harassment and would hardly be of any benefit to the present appellant. The question of invalid appointment of the Sales Tax Officer does not touch and concern the assessment order itself. The points raised in the memorandum of revision by the appellant could be heard and disposed of independently without the necessity of ordering a reassessment of his turn over, such an order itself would result in his harassment. We are, therefore, inclined to hold that the Sales Tax Officer was validity appointed and answer the reference accordingly and return the same to me Division Bench for disposing of the revision Application in according with the law. .;